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Petitioner: Malik MUHAMMAD MUMTAZ QADRI VS Respondent: THE STATE and others-
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Asif Saeed Khan Khosa, Dost Muhammad Khan Title: Malik MUHAMMAD MUMTAZ QADRI vs THE STATE and others- Case No.:Criminal Appeals Nos.210 and 211 of 2015 Criminal Appeal No.90 of 2011 and
JUDGMENT
Reported As: PLD 2016 Supreme Court 17 Result: Order accordinaly Judgment JUDGMENT ASIF SAEED KHAN KHOSA, J.--Almighty Allah has ordained in the Holy Qur'an that upon receipt of a news or information the men of faith ought to ascertain correctness of such news or information before they may act upon the same and that harm may be avoided if such news or information is got investigated in the first place. The following verses of the Holy Qur'an are relevant in this regard: ' Surah Al-Hujurat: verse 6 "0 you who have faith! If a profligate [person] should bring you some news, verify it, lest you should visit [harm] on some people out of ignorance, and then become regretful for what you have done." ' Surah An-Nisa: verse 94 "0 you who have faith! When you issue forth in the way of Allah, try to ascertain: do not say to someone who offers you peace, 'you are not a believer', seeking the transitory wares of the life of this world. Yet with Allah are plenteous gains. You too were such earlier, but Allah did you a favour. Therefore, do ascertain. Allah is indeed well aware of what you do." ' Surah An-Nisa: verse 83 "When a report of safety or alarm comes to them, they immediately broadcast it: but had they referred it to the Apostle or to those vested with authority among them, those of them who
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investigate would have ascertained it. And were it not for Allah's grace upon you and His mercy, you would have surely followed Satan, [all] except a few." ' In the following paragraphs of this judgment it shall be highlighted as to how the accused person in this case had acted on the basis of nothing but hearsay without getting his information ascertained, verified or investigated and, as Almighty Allah has warned, he has brought harm not only to another person but also to himself. Verily, such are the consequences when Almighty Allah's warnings or commands are not heeded to. 2. The facts of this case are quite simple and straightforward admitting of no ambiguity but the issues posed before us have been made to appear existential and of metaphysical proportions involving religious beliefs and philosophical reflections. With respect and without prejudice to the strong religious and philosophical views expressed before us we must state at the outset that we, in terms of our calling and vocation and in accord with the oath of our office, are obligated to decide this case in accordance with the law of the land as it exists and not in accordance with what the law should be. There is no gainsaying that the provisions of Article 203G of the Constitution of the Islamic Republic of Pakistan, 1973 categorically oust the jurisdiction of this Court in matters of interpretation of the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet Muhammad (peace be upon him) falling within the exclusive domain, power and jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of this Court with reference to an existing law and essentially this Court's jurisdiction in such matters is limited to application of the principles where they are settled. Apart from that, by virtue of the provisions of Article 230 of the Constitution, it is one of the functions of the Council of Islamic Ideology to interpret the Injunctions of Islam with reference to an existing or proposed law and we would not like to usurp that function either. 3. At about 04.15 PM on 04.01.2011 Mr. Salman Taseer, the then Governor of the Province of the Punjab, was returning home near Kohsar Market, Islamabad when Malik Muhammad Mumtaz Qadri appellant, serving in the Elite Force of the Punjab Police and performing the duties of an official guard of the Governor at that time, opened fire at Mr. Salman Taseer from his official weapon riddling his body with bullets and causing multiple injuries. The grievously injured Mr. Salman Taseer was immediately shifted to Polyclinic Hospital, Islamabad but upon arrival at the hospital he was declared dead. Soon after firing at Mr. Salman Taseer the appellant laid down his weapon and surrendered before the other official guards deputed on the Governor's security who arrested him at the place of occurrence and secured the weapon of offence. Mr. Shehryar Taseer, a son of Mr. Salman Taseer deceased, reported the matter to the local police through an application at 05.10 PM on the same day whereafter formal FIR No. 06 was registered in that regard at Police Station Kohsar, Islamabad at 05.25 PM during the same evening for offences under section 302, PPC read with section 109, PPC and section 7 of the Anti-Terrorism Act, 1997. 4. After completion of the investigation a Challan was submitted before the Anti-Terrorism Court-II, Rawalpindi Division and Islamabad Capital Territory which framed a Charge against Malik Muhammad Mumtaz Qadri appellant in respect of an offence of qatl-e-amd punishable under section 7(a) of the Anti-Terrorism Act, 1997 read with sections 302 and 109, PPC to which the appellant responded as follows: "I have not committed murder of an apostate like Suleman Taseer (the then Governor Punjab) contrary to dictums of the Holy Quran and Sunnah." ' During the trial the prosecution produced fourteen witnesses in support of its case against the appellant and also placed on the record some documentary evidence including a positive report of the Forensic Science Laboratory confirming matching of the crime- empties with the firearm recovered from the appellant's possession. Nadim Asif, ASI (PW11) and Muhammad Amer Khan, Inspector (PW 12) furnished the ocular account of the incident and also deposed about arrest of
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the appellant at the spot and recovery of the weapon of offence from his custody. Dr. Muhammad Arshad, Surgeon (PW1) provided the medical evidence and Ch. Muhammad Ali, Assistant Commissioner City, Islamabad (PW9) proved the confessional statement made before him by Malik Muhammad Mumtaz Qadri appellant under section 164, Cr.P.C. Hakem Khan, Inspector (PW 14), the investigating officer, stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature. In his statement recorded under section 342, Cr.P.C. The appellant admitted killing Mr. Salman Taseer and in response to the question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him he stated as follows: "Salman Taseer, at relevant time, was acting as Governor of the Province of Punjab. He was a representative of the Federal Government of Pakistan. While holding the position of the Governor of a Province of the Islamic Republic of Pakistan, he publically exposed himself as a sympathiser of condemned prisoner namely Mst. Aasia, who was sentenced to death by a Court of law for use of derogatory remarks about the Holy Prophet Mohammad (Peace Be Upon Him) and directly defiled the name of Holy Prophet Mohammad (Peace Be Upon Him). Needless to point out that the sentence awarded to the above lady was still holding field and the judgment passed by the trial Court, was yet to undergo judicial scrutiny in the Courts of appeal. However, Salman Taseer in a very derogatory manner on his visit to Jail at Lahore, arranged a "Darbar" for making himself available to receive only self arranged mercy petition of the condemned prisoner. It was not that simple, but Salman Taseer also in his interview published on 23.12.2010, in a very shameful manner called Blasphemy Law as "Black Law". To criticize such law and to challenge it as it was man made law tantamount to directly defiling the sacred name of the Holy Prophet Mohammad (Peace Be Upon Him) and was an attempt to lower down this sacred provision of Law, which is in consonance with the dictates of Quran and Sunnah. In this connection the Daily Express tribune of 5.12.2010 (Portion highlighted Mark A to A) and the Daily Express (Urdu) dated 23.11.2010, marked B to B at page 8 and marked C to C at page 5 are worth mentioning. It is pointed out that the news items mentioned above were never denounced by Salman Taseer in his life time. This situation reveals that Salman Taseer himself was responsible for commission of an offence under section 295-C of P.P.C. Punishable to death or life imprisonment. In spite of that he was not dealt with in accordance with law, obviously he was the lieutenant of President Asif Ali Zardari and a bully of Americans. So nature had to take its own course and justice was done. It is a lesson for all the apostates, as finally they have to meet the same fate. ' I may put a question to the prosecution "If a Muslim due to "Sub-oShattim" and "Ertad" does not render himself liable to dual liability of being killed? The act which is embedded with both "Sub-o- Shattim" and "Ertad" touches the heights of gravity. Here prosecution has to show that due to Shatum one does not become "Murtad" (apostate) and that "Murtad" is not liable to be killed? This preposition would definitely settle fate of the case, one way or other. Personal life of Salman Taseer shows that right from early times he proved himself as an infidel. He married three times. His one wife was "Sikh" by religion. He arranged his so called marriage in a secret way with that lady in New Delhi in India. From that wedlock a son named Aatish Taseer was born. On attaining youth above Aatish adopted Journalism -in London and once or twice traveled to Pakistan to see his father Aatish Taseer wrote a book titled "Stranger to History" and it was published by "Mc CLELLAND STEWART OF LONDON". The author while describing his father Salman Taseer writes at pages 21 and 22 of the Book Stranger to History (Book attached) "My father who drank scotch every evening, never fasted or prayed even ate pork and once said "It was only when I was in jail and all they gave me to read was Koran- and read it back to front several times - that I realized there was nothing in it for me".
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' His lifestyle, faith and living with a lady of non Muslim faith, reflecting his act of living in constant state of Zinna under the pretext of marriage (not permissible in Islam) speak volume of his character and associated matters. ' On the faithful day, I being member of Elite Force I was deployed as one of the member of the Escort Guard of Salman Taseer, the Governor Punjab. In Koh-i-Sar Market, the Governor with another after having lunch in a restaurant walked to his vehicle. In adjoining mosque I went for urinating in the washroom and for making ablution. When I came out with my gun, I came across Salman Taseer. Then I had the occasion to address him, "your honour being the Governor had remarked about blasphemy law as black law, if so it was unbecoming of you" Upon this he suddenly shouted and said, "Not only that it is black law, but also it is my shit". Being a Muslim I lost control and under grave and suddenly provocation, I pressed the trigger and he lay dead in front of me. I have no repentance and I did it for "Tahafuz-iNamoos-i-Rasool" Salman offered me grave and sudden provocation. I was justified to kill him kindly see my accompanying written statement under section 265(F)(5) of Cr.P.C." ' The appellant opted not to make a statement on oath under section 340(2), Cr.P.C. And did not produce any witness in his defence. He, however, submitted a written statement under section 265-F(5), Cr.P.C. Maintaining that he was "justified" in killing Mr. Salman Taseer and also placed on the record some newspaper reports. 5. After recording the evidence and attending to the final arguments of the learned counsel for the parties the learned Judge, Special Court-II, Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory convicted Malik Muhammad Mumtaz Qadri appellant for an offence under section 302(b), PPC vide judgment dated 01.10.2011 and sentenced him to death and to pay a sum of Rs.1,00,000/- to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment the trial court also convicted the appellant for an offence under section 7(a) of the Anti- Terrorism Act, 1997 and sentenced him to death and to pay a fine of Rs. 1,00,000/- or in default of payment thereof to undergo simple imprisonment for six months. 6. Malik Muhammad Mumtaz Qadri appellant challenged his convictions and sentences before the Islamabad High Court, Islamabad through Criminal Appeal No. 90 of 2011 which was heard by a learned Division Bench of the said Court along with Capital Sentence Reference No. 01 of 2011 seeking confirmation of the sentences of death passed by the trial court and vide judgment dated 09.03.2015 the appeal filed by the appellant was dismissed to the extent of his conviction and sentence recorded by the trial court for an offence under section 302(b), PPC and the connected Capital Sentence Reference was answered in the affirmative to that extent but the appeal was partly allowed to the extent of his conviction and sentence recorded by the trial court for an offence under section 7(a) of the Anti-Terrorism Act, 1997 which conviction and sentence were set aside and he was acquitted of that count of the Charge. 7. Subsequently Malik Muhammad Mumtaz Qadri filed Criminal Petition No. 197 of 2015 before this Court seeking leave to appeal against the above mentioned judgment delivered by the Islamabad High Court, Islamabad and assailing his conviction and sentence for an offence under section 302(b), PPC whereas the State preferred Criminal Petition No. 275 of 2015 before this Court seeking leave to appeal against the same judgment and challenging acquittal of Malik Muhammad Mumtaz Qadri from the charge under section 7(a) of the Anti-Terrorism Act, 1997. On 14.05.2015 this Court allowed both the said Criminal Petitions and granted leave to appeal therein by passing the following order: "Criminal Petition No. 197 of 2015 ' The record of the case shows that Malik Muhammad Mumtaz Qadri petitioner had admitted killing Governor Salman Taseer and this is so evident from the petitioner's statement recorded under
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section 164, Cr.P.C., his response to the charge framed against him and his answers to questions Nos.3 and 8 put to him at the time of recording of his statement under section 342, Cr.P.C. It has vehemently been argued by the learned counsel for the petitioner that the killing of the deceased by the petitioner was on account of the deceased having committed blasphemy in terms of section 295-C, PPC and in that backdrop the petitioner was justified in murdering the deceased. After hearing elaborate submissions of the learned counsel for the petitioner we are of the opinion that the following questions, inter alia, require consideration of this Court: (i) Did any utterance of the deceased in fact amount to blasphemy in terms of section 295-C, PPC and was sufficient record available in this case to presume commission of blasphemy by the deceased? The learned counsel for the petitioner has read out from clippings of two newspaper reports which prima facie tend to show that the deceased had said something about the law framed for the offence of blasphemy and its improper application and apparently the deceased had not uttered any word defiling the sacred name of the Holy Prophet Muhammad (Peace Be Upon Him). (ii) If the petitioner entertained an impression that the deceased had committed blasphemy then did the petitioner, acting in his private capacity, have any legal justification to kill the deceased without having recourse to the law? In this respect Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 may be relevant which stipulates that no person shall be deprived of his life or liberty save in accordance with law. (iii) Even if the petitioner entertained an impression about commission of blasphemy by the deceased and even if he was motivated by any religious sentiment in that regard still could the petitioner kill the deceased at a time when he was performing the duties of a guard of the deceased and was performing official functions, wearing an official uniform, using an official weapon and possessing officially supplied bullets? It would be relevant in this context to consider as to whether a person given in the protection of the petitioner could be deprived of his life by the petitioner himself and as to whether committing such a murder would not offend against the religious injunctions, precepts or traditions. (iv) If the petitioner had confessed killing the deceased before the learned trial court at different stages of the trial then was it not a case attracting the provisions of section 304, PPC and section 302(a), PPC which offence carries the punishment of death only and has no alternative sentence? (v) In case the petitioner's conviction is not interfered with by this Court then are there any mitigating circumstances available on the record warranting reduction of the petitioner's sentence from death to imprisonment for life or not? It may be relevant in the present context that the petitioner had no personal enmity with the deceased and he had acted only under a religious motivation. It may also be relevant in this context that the petitioner could be said to have acted cruelly and brutally in the matter as he had riddled the deceased's body with as many as thirty- two injuries caused by twenty- eight bullets. 2. The questions mentioned above, amongst others, require consideration of this Court. This petition is, therefore, allowed and leave to appeal is granted for the purpose. Criminal Petition No. 275 of 2015 3. It has inter alia been contended by the learned Advocate-General, Islamabad appearing for the petitioner/the State that while holding that the case in hand did not attract the definition of 'terrorism' contained in section 6 of the Anti-Terrorism Act, 1997 the Islamabad High Court, Islamabad had completely failed to advert to the provisions of section 6(1) (c) of the Anti-Terrorism Act, 1997 which stipulate that an offence of murder committed for the purpose of advancing a religious cause or for the purpose of intimidating and terrorizing the public or government officials amounts to terrorism triable by an Anti-Terrorism Court. He has also argued that the Islamabad High Court, Islamabad had fallen in error in holding that because there was insufficient evidence
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regarding spreading of fear and insecurity in the society as a result of the petitioner's action, therefore, the case in hand was not a case of terrorism. According to him the High Court had failed to appreciate that the definition of terrorism contained in section 6 of the Anti-Terrorism Act, 1997 had relevance to the design or object of the perpetrator of the offence and not to the fall out of an offence creating a sense of fear and insecurity in the society. In this respect he has relied upon the cases of Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), Mohabbat Ali and another v. The State and another (2007 SCMR 142), Bashir Ahmed v. Muhammad Siddique and others (PLD 2009 SC 11), Ahmed Jan V. Nasrullah and others (2012 SCMR 59) and Tariq Mahmood v. The State and others (2008 SCMR 1631). The learned Advocate-General, Islamabad has gone on to submit that the jurisdiction of an Anti-Terrorism Court is to be determined on the basis of the allegations leveled in the FIR, the statements made under section 161, Cr.P.C. And the attending circumstances of the case becoming available on the record and, thus, an ultimate acquittal of the respondent from the charge under section 7(a) of the Anti-Terrorism Act, 1997 did not preclude the learned Anti- Terrorism Court from trying the case in hand and in this respect he has relied upon the cases of Allah Din and 18 others v. The State and another (1994 SCMR 717) and Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) 4. The contentions of the learned Advocate-General, Islamabad noted above require consideration. This petition is, therefore, allowed and leave to appeal is granted for the purpose. 5. The office is directed to club the appeals arising out of the above mentioned two petitions so that they may be heard together. The office is also directed to fix the appeals for regular hearing in the month of October, 2015, as agreed between the learned counsel for the parties." ' Hence, the present appeals before this Court. 8. We have heard Mian Nazir Akhtar, ASC and Khawaja Muhammad Sharif, ASC appearing for Malik Muhammad Mumtaz Qadri convict-appellant and Mian Abdul Rauf, Advocate-General, Islamabad appearing for the State at considerable length and have minutely gone through the record of the case with their able assistance besides carefully perusing all the religious texts and material produced or referred to during the arguments. In the following paragraphs we propose to separately discuss and deal with all the arguments advanced before us from both the sides. 9. In a case of murder two questions are of paramount importance and they are (i) was it the accused person facing the trial who had committed the murder in issue? and (ii) if it was the accused person facing the trial who had committed the murder in issue then did he have any factual or legal justification for committing that murder? ' In the case in hand the answer to the first question had been provided by Malik Muhammad Mumtaz Qadri appellant himself by admitting at every stage of the case that he, and he alone, had committed the murder of Mr.Salman Taseer. During the investigation, in his confessional statement recorded by a Magistrate under section 164, Cr.P.C., in his reply to the Charge framed by the trial court, through some suggestions put by his learned counsel to different prosecution witnesses, in his statement recorded under section 342, Cr.P.C., in his written statement filed under section 265- F(5), Cr.P.C., through the final arguments advanced by his learned counsel at the conclusion of the trial and also before the High Court, at the ing stage before this Court and during the submissions made by his learned counsel before this Court at the time of hearing of the present appeals it had and has consistently been maintained by Malik Muhammad Mumtaz Qadri and his learned counsel that Mr. Salman Taseer had been done to death by none other than Malik Muhammad Mumtaz Qadri appellant at the date, time and place alleged by the prosecution. In these circumstances the question as to who had committed the murder of Mr. Salman Taseer may not detain us any further.
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10. The second question as to whether Malik Muhammad Mumtaz Qadri appellant had any factual or legal justification for committing the murder of Mr. Salman Taseer or not has been and is the real bone of contention in this case. This aspect of the case can be divided into two parts, i.e. Factual justification and legal justification and we now proceed to discuss these parts separately with reference to the record of the case as well as the submissions made by the learned counsel for the parties before us. 11. The factual justification consistently advanced by Malik Muhammad Mumtaz Qadri appellant has been that in his capacity as the Governor of the Brovince of the Punjab Mr. Salman Taseer had committed blasphemy. Two separate parts of such factual justification have been highlighted by the learned counsel for the appellant. The first part is that after conviction and sentence of one Mst. Asia Bibi, a Christian lady, in some case for committing the offence of blasphemy Mr. Salman Taseer had paid a visit to that lady inside a jail and on that occasion and also in some television programme aired later on he had observed that the minorities in Pakistan enjoyed adequate constitutional and legal protections, Mst. Asia Bibi had been convicted not under any law introduced by the Quaid-i-Azam or Zulfiqar Ali Bhutto but under a law promulgated by Zia-ul-Haq which was a black law, according to his own inquiries Mst. Asia Bibi was innocent in the matter, Mst. Asia Bibi was a poor and hapless woman, her conviction and sentence had brought a bad name to our system inside the country and abroad and he had obtained an application from Mst. Asia Bibi for seeking some relief for her from the relevant quarters. For proving such utterances of Mr. Salman Taseer the appellant had produced two newspaper reports before the trial court which had been placed on the record as Mark-A and Mark-B. It has been maintained by the learned…
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